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27 Oct 2006 08:19 pm

Hewitt's Ignorance of Constitutional Law

A constitutional law professor writes:

Hewitt said this, to you, in an attempt to make you feel stupid.

"The only time the government needs a compelling reason to treat people differently is when they do so on the basis of race. I mean, that's what's so astonishing about this book, is that you purported to write a book about the Constitution, and you dont know how it works."

Well, since he kept saying he would flunk you in ConLaw, let me tell you, as someone who has graded several hundred constitutional law final exams, that I, and any other professor of constitutional law, even at the undergraduate level, would flunk a student who said something so dumb as Hewitt's quote.

There are three levels of scrutiny that the courts apply to laws that treat people differently (ie, equal protection cases). In the first, the government merely needs a "rational basis" for making distinctions. I.e. we treat those who commit robberies differently, because there's a rational basis for the law.  Or laws setting sexual age of consent, which clearly discriminate against those of a certain age, but there's a rational basis, which the court accepts.

Then, there is "substantial relationship" test, which is applied only in sex discrimination cases. It means there must be a close connection between the law and some well-founded purpose (ie, it must be more than the assertion of some rational basis). It is consequently MUCH harder to have laws that treat men and women differently than it is to have laws that treat children and adults differently. But, for example, a state-run insurance plan that charged men and women different rates because of established differences in lifespan would probably meet this standard.

Finally, there's the place where Hugh makes his gobsmackingly stupid error: strict scrutiny. In strict scrutiny, any discriminatory law must meet two standards - it must identify a compelling need of the government for the law that can only be met by discrimination, AND it must be narrowly tailored to meet that need.  Sometimes, lawyers joke that it is "strict in name, fatal in practice" because it is so hard to meet that standard. Hugh said it ONLY applied to race. He couldn't be more wrong, as any graduate of my conlaw class could tell him. Strict scrutiny applies to race, religion, national origin, language - and, according to some, any fundamental freedom. There is a debate about which categories strict scrutiny should apply to, but no scholar I've ever read limits it only to race. Hewitt is dead wrong.

Actually, he knew he was dead wrong. That's why he began the interview establishing that I hadn't been to law school so he could then preen in front of his audience that I don't know what I'm talking about.

These people are truly rattled by this book. I believe it's a depth charge into the degerenacy of the current conservative movement. But make your own mind up. It's available here.

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